CourtListener 10370489•Commonwealth v. William P. Regan.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-78
COMMONWEALTH
vs.
WILLIAM P. REGAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, William P. Regan, appeals from his
conviction, after a jury trial in the District Court, of assault
and battery by means of a dangerous weapon, G. L. c. 265,
§ 15A (b).1 Concluding that the trial judge properly denied the
defendant's request for a jury instruction on self-defense where
there was no evidence that the defendant used all reasonable
means to avoid combat, we affirm.
1. Standard of review. The defendant made timely
requests, before and during trial, that the judge instruct the
jury on the issue of self-defense and made timely objections
1The defendant raises no challenge to his conviction of
negligent operation of a motor vehicle, G. L. c. 90,
§ 24 (2) (a).
when the judge denied the requests. "We therefore review to
determine whether the failure to instruct was error and, if it
was, whether the error was prejudicial." Commonwealth v. White,
103 Mass. App. Ct. 655, 658 (2024), quoting Commonwealth v.
Graham, 62 Mass. App. Ct. 642, 651 (2004).
2. Self-defense instruction. "A defendant is entitled to
have the jury . . . instructed on the law relating to self-
defense if the evidence, viewed in its light most favorable to
him, is sufficient to raise the issue." Commonwealth v. Espada,
450 Mass. 687, 692 (2008), quoting Commonwealth v. Harrington,
379 Mass. 446, 450 (1980). "[I]t must appear that the person
[claiming self-defense] had a reasonable apprehension of great
bodily harm and a reasonable belief that no other means would
suffice to prevent such harm." Commonwealth v. Benoit, 452
Mass. 212, 226 (2008), quoting Commonwealth v. Pike, 428 Mass.
393, 396 (1998). Specifically, the person claiming self-defense
must "use all reasonable means to avoid physical combat."
Commonwealth v. Fayad F., 495 Mass. 266, 277 (2025), quoting
Commonwealth v. King, 460 Mass. 80, 83 (2011). "Self-defense is
generally unavailable where the confrontation occurs on a public
street and 'where "there is no evidence that the principal was
not able to walk away."'" Commonwealth v. Ortega, 480 Mass.
603, 611 (2018), quoting Commonwealth v. Avila, 454 Mass. 744,
769 (2009).
2
Here, the defendant was not entitled to a self-defense
instruction as the evidence, even when viewed in the light most
favorable to the defendant, shows that he was able to retreat
and did not do so. See Espada, 450 Mass. at 693. It is
undisputed that, after the victim shouted at the defendant and
stepped towards him, the defendant responded by accelerating
away from the victim,2 passing two vehicles in the same lane of
travel, and circling around to face the victim. A city camera
video capturing the entire incident shows an empty lane of
traffic in the opposite direction, permitting the defendant to
continue to drive away, on the double yellow lines, as he passed
vehicles in his lane of traffic. Indeed, after striking the
victim, this is the exact avenue the defendant used to leave the
scene. In his testimony, the defendant recognized that he had
reasonable alternatives other than stopping on the sidewalk,
admitting, "I could have done a few things, you know." See
Commonwealth v. Toon, 55 Mass. App. Ct. 642, 653 (2002) ("There
was simply no evidence that an avenue of escape was unavailable
to the defendant at the start of the confrontation").
2 As the trial judge explained, "[t]he actions as they
happen on the street do not give rise to self-defense because
your client created the distance and once he drives away, self-
defense is eviscerated." See Commonwealth v. Toon, 55 Mass.
App. Ct. 642, 653 (2002).
3
Furthermore, the defendant's argument that he was unable to
retreat once he was on the sidewalk is not supported by any
evidence. Although there was a wall to the defendant's left,
the video footage revealed that there was ample space to the
defendant's right to allow the defendant to reenter his previous
travel lane. Indeed, the defendant admitted at trial that he
could have driven to the right of the stopped vehicles in the
road. See Fayad F., 495 Mass. at 276 ("Even if the juvenile had
not known that the victim intended to engage in a physical
altercation and the juvenile had not ascended the stairs with
the intent to assault the victim, once the victim took the first
swing at the juvenile, the juvenile had multiple avenues of
escape that he did not use"). Accordingly, the trial judge
properly denied the defendant's request for an instruction on
self-defense as there was no evidence, even when viewed in the
light most favorable to the defendant, that he used all means to
4
avoid combat.3
Judgment affirmed.
By the Court (Ditkoff, Hand &
Walsh, JJ.4),
Clerk
Entered: April 1, 2025.
3 We need not address the defendant's argument that the
trial judge erred in excluding the defendant's proposed
testimony that he knew the victim always carried a penknife.
This evidence went to the reasonableness of the defendant's fear
of the victim but had no relevance to the issue of retreat. See
Pike, 428 Mass. at 397 ("Whether the defendant's fear of attack
was reasonable is a factual question, depending upon a number of
circumstances, such as whether the victim was armed and the
physical size of the victim"). A knife is not a weapon that
would have affected the reasonableness of retreating by motor
vehicle. See Ortega, 480 Mass. at 612 (2018) ("If the weapon
requires close proximity to inflict injury and threaten death,
then retreat in an open space becomes a more viable option so
long as the aggressor is not within range to use the weapon").
Accordingly, this evidence could not have affected the result of
the trial.
4 The panelists are listed in order of seniority.
5
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